Smt. Mahendra K.Jadeja L/h of late Jashwant Kuverbha Jethwa, Baroda v. The Dy.CIT., Circle-1(2),, Baroda

ITA 2890/AHD/2007 | 1993-1994
Pronouncement Date: 08-01-2010 | Result: Allowed

Appeal Details

RSA Number 289020514 RSA 2007
Assessee PAN ADZPJ0296P
Bench Ahmedabad
Appeal Number ITA 2890/AHD/2007
Duration Of Justice 2 year(s) 6 month(s) 3 day(s)
Appellant Smt. Mahendra K.Jadeja L/h of late Jashwant Kuverbha Jethwa, Baroda
Respondent The Dy.CIT., Circle-1(2),, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 08-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 08-01-2010
Date Of Final Hearing 17-12-2009
Next Hearing Date 17-12-2009
Assessment Year 1993-1994
Appeal Filed On 05-07-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH JUDICIAL MEMBER AND SHRI A.N.PHAUJA ACCOUNTANT MEMBER ITA NO.2890/AHD/2007 ASSESSMENT YEAR: 1993-94 DATE OF HEARING:17.12.09 DRAFT ED:22.12.09 SMT. JASHWAN KUNVERBHA JETHWA L/H. SM. MAHENDRA K JADOJA 6 ANGAN APARTMENT 20 URMI SOCIETY BARODA PAN NO. ADZPJ0296P V/S. DCIT CIR-1(2) BARODA (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI MILIN MEHTA AR RESPONDENT BY:- SHRI C.K. MISHRA SR.DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX(APPEALS)-II BARODA IN APPEAL NO.CAB/ II-223/05-06 DATED 05- 03-2007. THE ASSESSMENT WAS FRAMED BY THE DCIT CIR CLE-1(2) BARODA U/S. 147 OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERR ED TO AS THE ACT) VIDE HIS ORDER DATED 28-02-2001 FOR THE ASSESSMENT YEAR 1993 -94. 2. AT THE OUTSET IT IS NOTICED THAT THIS APPEAL IS DELAYED BY TEN DAYS AND THE ASSESSEE HAS FILED CONDONATION PETITION FOR CONDONA TION OF DELAY. BEFORE US LD. COUNSEL FOR THE ASSESSEE STATED THE FACT THAT T HE ORDER OF CIT(A) WAS SERVED ON THE ASSESSEE ON 27-04-2007AND THEREFORE A PPEAL WAS REQUIRED TO BE FILED ON OR BEFORE 6-06-2007. HOWEVER THE SAID APPEAL IS FILED ON 05-07- ITA NO.2890/AHD/2007 A.Y. 1993-94 SMT. JASHWANT K JETHWA V. DCIT CIR-1(2) BARODA PAGE 2 2007 I.E. AFTER A DELAY OF ABOUT 10 DAYS. THIS APP LICATION IS FOR THE PURPOSE OF EXPLAINING THE REASONS FOR THE DELAY AND ALSO REQUE STING TO CONDONE THE SAID DELAY. THE APPEAL PAPERS WERE SENT TO THE ASSESSEE FOR SIGNATURE HE AT THAT TIME WAS AT ADESAR AND THEREFORE THE PAPERS WERE SE NT BY COURIER. THE APPEAL PAPERS WERE DELIVERED LATE BY THE COURIER OFFICE T HEREFORE APPEAL IS DELAYED BY 10 DAYS. ON THE OTHER HAND LD. SR.DR HAS NOT OBJEC TED THE CONDONATION OF DELAY. ACCORDINGLY WE CONDONE THE DELAY AND ADMIT THIS APPEAL OF THE ASSESSEE. 3. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) IN NOT FOLLOWING THE DIRECTIONS OF THIS TRIB UNAL THAT NO NOTICE U/S.143(2) OF THE ACT WAS NOT ISSUED. LD.COUNSEL FOR THE ASSES SEE STATED THAT NO NOTICE U/S.143(2) OF THE ACT WAS EVER ISSUED IN THIS CASE. WE FIND THAT THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. THE ITAT AHD VIDE ORDER DATED 1-8-2005 (ITA NO .2371/A/2002 AND CO NO.136/A/002) HAD SET ASIDE THE MATER TO THE FIL E OF CIT(A) TO DECIDE HE ISSUE OF NOTICE U/S.143(2). THE ITAT AH MEDABAD IN THE ABOVE ORDER HAD HELD AS UNDER:- WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. AS THE FACTS MERGE THE ASSES SEE HAD RAISED SPECIFIC GROUND ABOUT HE VALIDITY OF 147/148 REASSE SSMENT PROCEEDINGS R.W.S. 143(2) THE CIT(A) HAS NO DECIDE D HE SAME ON MERITS BY HOLDING THAT THE SAME WAS NO RAISED BEFOR E THE AO. THE GROUND WAS RAISED BEFORE THE CIT(A) BESIDES OTHER WISE ALSO THE SAME BEING LEGAL GROUND OUGHT TO HAVE BEEN DECIDED. IN VIEW THEREOF WE ARE INCLINED TO SET ASIDE THE REVENUES APPEAL AND THE ASSESSEES CO BEFORE THE CIT(A) TO DECIDE ABOUT THE GROUND TAKEN BY THE ASSESSEE REGARDING NON-ISSUANCE OF VAL ID NOTICE UNDER SECTION 143(2). 2. DESPITE SPECIFIC DIRECTIONS OF THE ITAT AHMEDAB AD THE CIT(A) HAS NOT DECIDED THE SAME ON MERITS. IN THE ORDER PASSED BY THE CIT(A) THE CIT(A) HAS HELD THAT THE MATTER OF ISSUANCE OF NOTI CE U/S.143(2) WAS DECIDED ON MERITS BY HIS PREDECESSOR. THE CIT(A) H AS THUS DISMISSED THE APPEAL. 3. THE APPELLANT PERSONALLY APPEARED BEFORE THE CIT (A) AND ALSO WRITTEN SUBMISSIONS WERE FILED. IT WAS MENTIONED THAT MANDA TORY NOTICE U/S.143(2) HAS NOT BEEN ISSUED IN THE CASE OF THE A PPELLANT. DETAILED ITA NO.2890/AHD/2007 A.Y. 1993-94 SMT. JASHWANT K JETHWA V. DCIT CIR-1(2) BARODA PAGE 3 SUBMISSIONS AND EXPLANATIONS WERE FILED. HOWEVER T HE CIT(A) REJECTED THE SAME ON INVALID GROUND THAT THE ISSUE WAS DECID ED ON MERITS. 4. EVEN NOW BEFORE US LD. SR. DEPARTMENTAL REPRESE NTATIVE COULD NOT ADDUCE ANYTHING WHICH SHOWS THAT NOTICE U/S.143(2) OF THE ACT WAS EVER ISSUED. ACCORDINGLY WE ARE OF THE VIEW THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISIO N OF JURISDICTIONAL HIGH COURT IN THE CASE OF DCIT V. MAHI VALLEY HOTELS AND RESORTS (2006) 287 ITR 360 (GUJ). RESPECTFULLY FOLLOWING THE HONBLE JURIS DICTIONAL HIGH COURT WE ALLOW THIS APPEAL OF THE ASSESSEE AND THIS ISSUE OF THE ASSESSEES APPEAL IS ALLOWED. 4. IN THE RESULT ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 08 /01/2010 SD/- SD/- (A.N.PHAUJA) (MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD DATED : 08/01/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-II BARODA 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD